2009.07.14

2007 (A) 2355

Keishu Vol. 63, No. 6

Decision concerning "compulsory execution" set forth in Article 96-2 of the Penal Code and "auction for exercise of a security interest" set forth in Article 1 of the Civil Execution Act

Case charged for obstruction of compulsory execution and for creation of a false record in the original of an electromagnetic notarial deed and uttering thereof

Decision of the First Petty Bench, dismissed

Hiroshima High Court, Okayama Branch, Judgment of October 31, 2007

The term "compulsory execution" set forth in Article 96-2 of the Penal Code includes "auction for exercise of a security interest" set forth in Article 1 of the Civil Execution Act.

Article 96-2 of the Penal Code, Article 1 of the Civil Execution Act

Article 96-2 of the Penal Code
A person who for the purpose of avoiding compulsory execution conceals, damages or fakes a transfer of the debtor's property to another or disguises a debt shall be punished by imprisonment with work for not more than 2 years or a fine of not more than 500,000 yen.

Article 1 of the Civil Execution Act
Compulsory execution, an auction for exercise of a security interest, an auction for the purpose of a realization under the provisions of the Civil Code (Act No. 89 of 1896), the Commercial Code (Act No. 48 of 1899) or any other Acts, and disclosure of property by obligors (hereinafter collectively referred to as "civil execution") shall be governed by the provisions of this Act in addition to the provisions of other laws and regulations.

The final appeal is dismissed.

The reasons for final appeal argued by the defense counsels, NOBUOKA Toshiko and ODA Koji, including the reason alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations, errors in fact-finding, or inappropriateness in sentencing, and none of these assertions can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
It is appropriate to construe that the term "compulsory execution" set forth in Article 96-2 of the Penal Code includes "auction for exercise of a security interest" set forth in Article 1 of the Civil Execution Act. The determination of the court of prior instance that goes along with this reasoning is appropriate.

Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice KAINAKA Tatsuo
Justice WAKUI Norio
Justice MIYAKAWA Koji
Justice SAKURAI Ryuko
Justice KANETSUKI Seishi